Occupational Exposure to Lead

DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. H-004 E, F, G, H, I, and J]

Occupational Exposure to Lead

AGENCY: Occupational Safety and Health Administration (OSHA), Labor.

ACTION: Amendments to final rule.

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SUMMARY: This document embodies a determination by OSHA that it is

economically feasible for the brass and bronze ingot manufacturing

industry as a whole to achieve an air lead limit of 75 g/m\3\

within six years by means of engineering and work practice controls. It

amends Table I of paragraph (e)(1), the compliance Implementation

Schedule, of the final rule on occupational exposure to lead, 29 CFR

1910.1025, to reflect that determination. This document also amends

that Table based

[[Page 52857]]

on the lifting of a judicial stay on March 8, 1990 and July 19, 1991,

for other, specific industries. The stay had been in effect with

respect to compliance requirements set forth in paragraph (e)(1) of the

lead standard. Accordingly, lead industries affected by the lifting of

the stay must implement engineering and work practice controls in

accordance with paragraph (e)(1) of the lead standard by the date

specified for the particular industry in Table I of paragraph (e)(1),

as amended.

In addition, this document makes technical changes and corrections

to the standard, amending portions of the standard that are unclear,

obsolete or inconsistent with current compliance requirements. It also

amends certain information in the Appendices to 29 CFR 1910.1025 that

may have been misleading.

EFFECTIVE DATE: October 11, 1995. The compliance dates for industries

identified herein are set forth in Table I of paragraph (e)(1), below.

FOR FURTHER INFORMATION CONTACT: Ms. Anne Cyr, Acting Director of

Information and Consumer Affairs, Occupational Safety and Health

Administration, U.S. Department of Labor, Room N-3647, 200 Constitution

Avenue, NW, Washington, DC 20010, telephone: (202) 219-8151.

SUPPLEMENTARY INFORMATION:

Background

On November 14, 1978, OSHA promulgated the lead standard (29 CFR

1910.1025), which established a permissible exposure limit (PEL) of 50

g/m\3\ based on an 8-hour time-weighted-average (TWA) (43 FR

52952; and see 43 FR 54354, November 21, 1978). Paragraph (e)(1) of the

standard requires that, to the extent feasible, employers achieve the

PEL of 50 g/m\3\ solely by means of engineering and work

practice controls.

The standard was challenged by both industry and labor, with all

cases transferred to the U. S. Court of Appeals for the District of

Columbia. In United Steelworkers of America v. Marshall, 647 F. 2d 1189

(D.C. Cir. 1980), cert. denied, 453 U.S. 913 (1981), the Court affirmed

most aspects of the regulation covering worker exposure to airborne

lead. The Court also upheld OSHA's findings of feasibility for ten

industries: primary lead production, secondary lead production, can

manufacturing, lead acid battery manufacturing, paints and coatings

manufacturing, ink manufacturing, wallpaper manufacturing, electronics,

printing, and grey-iron foundries. However, the Court further found

that OSHA had failed to present adequate evidence of feasibility for 38

lead industries.

The Court remanded the record to OSHA for reconsideration of the

technological and economic feasibility of paragraph (e)(1) and stayed

enforcement of paragraph (e)(1) for those industries. Nonetheless, the

Court held that the 38 industries were required to meet the PEL by a

combination of engineering controls, work practices, and respiratory

protection. Accordingly, the entire lead standard was in effect with

two exceptions: (1) the requirement for the 38 remand industries that

the PEL be achieved by engineering and work practice controls; and (2)

the requirement that high efficiency filters be used in respirators,

which had been stayed administratively by OSHA in 1979 (44 FR 5445).

In December 1981, OSHA published (46 FR 60758) and filed with the

Court its statement of reasons that compliance with paragraph (e)(1) is

feasible for all but nine of the remand industries, which, after

recategorizing and adding other industries to the list, totaled 45

industries. The nine industries were: brass and bronze ingot

manufacturing/production; collection and processing of scrap (including

independent battery breaking); lead chemicals; lead chromate pigments;

leaded steel; nonferrous foundries; secondary copper smelting;

shipbuilding and ship repairing; and stevedoring. OSHA requested that

the record for these nine be remanded again to the Agency for further

consideration of economic and technological feasibility. In March 1987,

the Court remanded the record to OSHA for these industries.

On July 11, 1989, after public hearings, OSHA published its

determination that compliance with paragraph (e)(1) was both

technologically and economically feasible for eight of the nine

industries (54 FR 29142). For the ninth industry, nonferrous foundries,

OSHA distinguished between large foundries (those with 20 or more

employees) and small foundries (those with fewer than 20 employees).

OSHA concluded that paragraph (e)(1) was feasible for large nonferrous

foundries but was not economically feasible for small nonferrous

foundries. On January 30, 1990, OSHA published its determination that

achieving an airborne lead concentration of 75 g/m\3\ was

economically feasible for small foundries (55 FR 3146).

On March 8, 1990, in response to OSHA's statement of reasons

regarding the feasibility of paragraph (e)(1), the U.S. Court of

Appeals for the D.C. Circuit lifted the judicial stay for all remand

industries except the six that contested OSHA's feasibility findings.

The 39 industries for which the stay was lifted are: agricultural

pesticides; aluminum smelting; ammunition manufacturing; artificial

pearl processing; book binding; brick manufacturing; cable coating;

cutlery; diamond processing; electroplating; explosives manufacturing;

gasoline additive manufacturing; glass manufacturing; jewelry

manufacturing; lamp manufacturing; lead burning; lead chromate

pigments; leather manufacturing; machining; miscellaneous lead

products; nickel smelting; pipe galvanizing; plastics and rubber

manufacturing; plumbing; pottery and ceramics; primary and secondary

smelting of gold, silver, and platinum; primary copper smelting; sheet

metal manufacturing; shipbuilding and ship repair; solder

manufacturing; soldering; spray painting; steel manufacturing

(excluding leaded steel manufacturing); stevedoring; terne metal;

textiles; telecommunications; tin rolling and plating; and zinc

smelting. These industries were given two and one-half years (46 FR

60758, Dec. 11, 1981), from the date the stay was lifted, until

September 8, 1992, to comply with the PEL by means of engineering and

work practice controls.

The stay was continued for the six industries that asserted

challenges to OSHA's feasibility findings. These industries are:

nonferrous foundries; secondary copper smelting; brass and bronze ingot

manufacturing; collection and processing of scrap (including

independent battery breaking); leaded steel manufacturing; and lead

chemicals manufacturing. On July 19, 1991, in AISI v. OSHA, 939 F.2d

975 (D.C. Cir. 1991), the Court affirmed OSHA's findings of

technological and economic feasibility for all industries except the

finding of economic feasibility for brass and bronze ingot

manufacturing. Accordingly, the Court lifted the judicial stay for the

other five industries.

Secondary copper smelters, lead chemical manufacturing, and large

nonferrous foundries were allowed five years from July 19, 1991, the

date of the Court's decision, to implement engineering and work

practice controls to achieve the PEL of 50 ug/m3. Small nonferrous

foundries were allowed five years from that date to achieve an airborne

lead concentration of 75 ug/m3.

As to the sixth industry, brass and bronze ingot manufacturing, the

stay remained in effect. The Court upheld OSHA's finding of

technological

[[Page 52858]]

feasibility for that industry but remanded the record to OSHA for

further consideration of economic feasibility. For all other lead

industries the requirement to comply with paragraph (e)(1) is currently

in effect.

In response to the remand, OSHA has reconsidered the record and has

concluded that an airborne lead concentration of 75 ug/m3, measured as

an 8-hour TWA, is the lowest, economically feasible level that can be

achieved by the brass and bronze ingot manufacturing industry as a

whole by engineering and work practice controls. Employers in the

industry are required, therefore, to reduce airborne concentrations of

lead to that level. The industry will have six years from the date the

court lifts the existing stay to do so.

OSHA reached this conclusion based upon the evidence in the record

as discussed and analyzed at 57 FR 29150-29162 (July 11, 1989). In

particular, OSHA relied upon reliable data from OSHA's contractor JACA,

showing that nearly three-quarters of all employees in ingot production

were already exposed below 50 ug/m3 years ago. Data from recent OSHA

inspections are similar. These data show that most employees are

exposed below 50 ug/m3 and that 90% are exposed below 100 ug/m3. Taken

together, these data suggest that only very limited costs will be

incurred in reducing exposure levels in most operations, most of the

time to lead in air concentrations at or below 75 ug/m3.

OSHA is assured of the economic feasibility of 75 ug/m3 for three

additional reasons. First, OSHA recognizes that in the two most

difficult operations to control to 75 ug/m3 by engineering and work

practice controls, briquetting and baghouse maintenance, achieving that

airborne concentration limit probably is not economically feasible for

the industry as a whole. OSHA therefore is not seeking to prove

economic feasibility for, or to impose the presumption of economic

feasibility on, those operations. Second, in recognition of the

economic constraints on the industry, OSHA is allowing employers six

years from the date the court lifts the stay on paragraph (e) of the

lead standard before employers have to come into compliance with the

airborne concentration limit of 75 ug/m3. Employers, thus, can spread

the costs of compliance over that time period. And finally, although

OSHA did not rely upon it in determining economic feasibility, the fact

that industry representatives recognize that 75 ug/m3 is economically

feasible is strong confirmation of the accuracy of that determination.

This recognition by the industry is reflected in the settlement

agreement signed on June 27, 1995 by OSHA and the Institute of Scrap

Recycling Industries (``ISRI'') and the Brass and Bronze Ingot

Manufacturers, Inc. (``BBIM''), representing the brass and bronze ingot

manufacturing industry. OSHA will incorporate the detailed terms of

that agreement into a compliance directive applicable to the industry.

The new compliance dates that result from the stay being lifted,

OSHA's determination of economic feasibility, and the settlement

agreement are reflected in the Implementation Schedule (Table I) of

paragraph (e)(1) of the standard, as amended.

Explanation of Technical Amendments and Corrections

1. Paragraph (e). Methods of compliance--(1) Engineering and work

practice controls. The Implementation Schedule (Table I) of paragraph

(e)(1) is being revised to reflect the current status of compliance

dates for the engineering and work practice requirements for the lead

industries as a result of the lifting of the stay on enforcement of

paragraph (e)(1) for all of the remaining remand lead industries except

brass and bronze ingot manufacturers. The revision of Table I also

reflects OSHA's determination regarding economic feasibility for that

industry and the settlement agreement between representatives of OSHA

and the industry. In addition, reference to interim levels, which are

now obsolete, is deleted.

2. Paragraph (e)(4). Bypass of interim level. Paragraph (e) (4) is

deleted from 29 CFR 1910.1025 as the interim levels established in this

paragraph at the time of promulgation of the lead standard are no

longer relevant. To avoid confusion for readers and to maintain

continuity of the regulatory text, paragraphs (e)(5) and (e)(6) are

redesignated as paragraphs (e)(4) and (e)(5), respectively.

3. Paragraph (f)--Respiratory protection. Paragraph (f)(1)(i) is

revised to delete the entire clause beginning with the word ``except,''

which is based on interim levels that are no longer relevant.

4. Paragraph (j). Medical Surveillance.--Paragraph (j)(2)(ii) is

revised to clarify that the requirement for follow-up blood sampling

tests applies only to the 60 ug/100 g removal trigger and does not

apply to the 50 ug/100 g trigger, which already involves an average

rather than a single result to be confirmed.

5. Paragraph (k). Medical removal protection--(1) Temporary medical

removal and return of an employee--(i) Temporary removal due to

elevated blood lead levels. Paragraphs (k)(1)(i)(A) and (B) are deleted

in their entirety as they reference a phase-in schedule for medical

removal protection that is no longer relevant. Paragraphs (k)(1)(i)(C)

and (D) are revised to maintain consistency with current requirements

and are redesignated as paragraphs (k)(1)(i)(A) and (B), respectively,

to maintain continuity of the regulatory text.

Paragraphs (k)(1)(iii)(A)(1) and (2) are deleted since they

reference interim levels that no longer apply, and paragraphs

(k)(1)(iii)(A)(3) and (4) are redesignated as paragraphs

(k)(1)(iii)(A)(1) and (2), respectively, to maintain continuity of the

regulatory text.

6. This document also corrects several inadvertent errors and

updates information in Appendix B and revises certain language in

Appendix C which might otherwise be misleading.

With the exception of the amendments to Table I and the

determination of economic feasibility for the brass and bronze ingot

manufacturing industry, which were the subject of additional fact

finding and a settlement agreement, the amendments and corrections

described above are minor and not controversial. OSHA does not believe

that there is a need to subject these technical amendments and

corrections in which the public is not particularly interested to

rulemaking or other public procedures (see 29 CFR 1911.5). Good cause

is hereby found to dispense with such procedures in this instance. For

the same reason, good cause is also found to make these changes

effective immediately.

Authority and Signature

This document was prepared under the direction of Joseph A. Dear,

Assistant Secretary of Labor for Occupational Safety and Health, 200

Constitution Avenue, N.W., Washington, DC 20210.

This action is taken pursuant to sections 6(b) and 8(c) of the

Occupational Safety and Health Act of 1970 (84 Stat. 1593, 1597, 1599,

29 U.S.C 653, 655, 657), Secretary of Labor's Order No. 1-90 (55 FR

9033) and 29 CFR part 1911 and 33 U.S.C 941. Part 1910, Title 29, Code

of Federal Regulations, is hereby amended as set forth below.

List of Subjects in 29 CFR Part 1910

Lead, Occupational Safety and Health.

[[Page 52859]]

Signed at Washington, D.C., this 2nd day of October, 1995.

Joseph A. Dear,

Assistant Secretary of Labor.

Part 1910 of Title 29 of the Code of Federal Regulations is hereby

amended as set forth below:

PART 1910--[AMENDED]

1. The authority citation for Subpart Z of Part 1910 continues to

read as follows:

Authority: Secs. 6, 8 Occupational Safety and Health Act, 29

U.S.C. 655, 657; Secretary of Labor's Orders 12-71 (36 FR 8754), 8-

76 (41 FR 25059), 9-83 (48 FR 35736), or 1-90 (55 FR 9033), as

applicable; and 29 CFR Part 1911.

All of subpart Z issued under section 6(b) of the Occupational

Safety and Health Act, except those substances which have exposure

limits listed in Tables Z-1, Z-2, and Z-3 of 29 CFR 1910.1000. The

latter were issued under section 6(a) (29 U.S.C. 655(a)).

Section 1910.1000 Tables Z-1, Z-2, Z-3 also issued under 5

U.S.C. 553. Section 1910.1000, Table Z-1, Z-2, and Z-3 not issued

under 29 CFR part 1911 except for the arsenic (organic compounds),

benzene, and cotton dust listings.

Section 1910.1001 also issued under Sec. 107 of Contract Work

Hours and Safety Standards Act, 40 U.S.C. 333 and 5 U.S.C. 553.

Section 1910.1002 not issued under 29 U.S.C. 655 or 29 CFR Part

1911; also issued under 5 U.S.C. 553.

Section 1910.1003 through 1910.1018 also issued under 29 U.S.C.

653.

Section 1910.1025 also issued under 29 U.S.C. 653 and 5 U.S.C.

553.

Section 1910.1028 also issued under 29 U.S.C. 653.

Section 1910.1030 also issued under 29 U.S.C. 653.

Section 1910.1043 also issued under 5 U.S.C. 551 et seq.

Sections 1910.1045 and 1910.1047 also issued under 29 U.S.C.

653.

Section 1910.1048 also issued under 29 U.S.C. 653.

Sections 1910.1200, 1910.1499 and 1910.1500 also issued under 5

U.S.C. 553.

Section 1910.1450 is also issued under secs. 6(b), 8(c) and

8(g)(2), Pub. L. 91-596, 84 Stat. 1593, 1955, 1600; 29 U.S.C. 655,

657.

2. Section 1910.1025 is amended by revising Table I in paragraph

(e)(1)(ii), and paragraphs (f)(1)(i), (j)(2)(ii), and (k)(1)(i);

3. By removing paragraph (e)(4) and redesignating paragraphs (e)(5)

and (6) as paragraphs (e)(4) and (5);

4. By removing paragraphs (k)(1)(i)(A) and (B) and redesignating

paragraphs (k)(1)(i)(C) and (D) as (k)(1)(i)(A) and (B); and

5. By removing paragraphs (k)(1)(iii)(A)(1) and (2), and

redesignating paragraphs (k)(1)(iii)(A)(3) and (4) as paragraphs

(k)(1)(iii)(A)(1) and (2).

Sec. 1910.1025 Lead.

* * * * *

(e) Methods of compliance--(1) Engineering and work practice

controls. (ii) * * *

Table I

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Compliance dates:1 (50 g/m\3\)

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Lead chemicals, secondary copper smelting July 19, 1996.

Nonferrous foundries..................... July 19, 1996.\2\

Brass and bronze ingot manufacture....... 6 years.\3\

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\1\Calculated by counting from the date the stay on implementation of

paragraph (e)(1) was lifted by the U.S. Court of Appeals for the

District of Columbia, the number of years specified in the 1978 lead

standard and subsequent amendments for compliance with the PEL of 50

g/m\3\ for exposure to airborne concentrations of lead levels

for the particular industry.

\2\Large nonferrous foundries (20 or more employees) are required to

achieve the PEL of 50 g/m\3\ by means of engineering and work

practice controls. Small nonferrous foundries (fewer than 20

employees) are required to achieve an 8-hour TWA of 75 g/m\3\

by such controls.

\3\Expressed as the number of years from the date on which the Court

lifts the stay on the implementation of paragraph (e)(1) for this

industry for employers to achieve a lead in air concentration of 75

g/m\3\. Compliance with paragraph (e) in this industry is

determined by a compliance directive that incorporates elements from

the settlement agreement between OSHA and representatives of the

industry.

* * * * *

(f) Respiratory protection.

(1) * * *

(i) During the time period necessary to install and implement

engineering or work practice controls.

* * * * *

(j) * * *

(2) * * *

(ii) Follow-up blood sampling tests. Whenever the results of a

blood lead level test indicate that an employee's blood lead level

exceeds the numerical criterion for medical removal under paragraph

(k)(1)(i)(A) of this section, the employer shall provide a second

(follow-up) blood sampling test within two weeks after the employer

receives the results of the first blood sampling test.

* * * * *

(k) * * *

(1) * * *

(i) Temporary removal due to elevated blood lead levels. (A) The

employer shall remove an employee from work having an exposure to lead

at or above the action level on each occasion that a periodic and a

follow-up blood sampling test conducted pursuant to this section

indicate that the employee's blood lead level is at or above 60

g/100 g of whole blood; and

(B) The employer shall remove an employee from work having an

exposure to lead at or above the action level on each occasion that the

average of the last three blood sampling tests conducted pursuant to

this section (or the average of all blood sampling tests conducted over

the previous six (6) months, whichever is longer) indicates that the

employee's blood lead level is at or above 50 g/100 g of whole

blood; provided, however, that an employee need not be removed if the

last blood sampling test indicates a blood lead level at or below 40

g/100 g of whole blood.

* * * * *

6. In Sec. 1910.1025, Appendix B is amended as follows:

Section XV, For Additional Information, Part A, and item 9 are

revised and new items 10 through 14 are added to read as follows:

* * * * *

XV. * * *

A. Copies of the Standard and explanatory material may be

obtained by writing or calling the OSHA Docket Office, U.S.

Department of Labor, room N2634, 200 Constitution Avenue, N.W.,

Washington, DC 20210. Telephone: (202) 219-7894.

* * * * *

9. Revision to the standard and an additional appendix (Appendix

D), Federal Register, Vol. 47, pp. 51117-51119, November 12, 1982.

10. Notice of reopening of lead rulemaking for nine remand

industry sectors, Federal Register, vol. 53, pp. 11511-11513, April

7, 1988.

11. Statement of reasons, Federal Register, vol. 54, pp. 29142-

29275, July 11, 1989.

12. Statement of reasons, Federal Register, vol. 55, pp. 3146-

3167, January 30, 1990.

13. Correction to appendix B, Federal Register, vol. 55, pp.

4998-4999, February 13, 1991.

14. Correction to appendices, Federal Register, vol. 56, p.

24686, May 31, 1991.

* * * * *

7. Appendix C to Sec. 1910.1025, Section I. Medical Surveillance

and Monitoring Requirements for Workers Exposed to Inorganic Lead, is

amended as follows:

a. In the last sentence of the second paragraph, the words ``A

zinc protoporphyrin (ZPP) measurement is strongly recommended . .

.'' are revised to read ``A zinc protoporphyrin (ZPP) is required .

. .''

b. In Table 2, item B, the words ``(ZPP is also strongly

recommended . . .'' are revised to read ``(ZPP is also required . .

.''

* * * * *

[FR Doc. 95-25067 Filed 10-10-95; 8:45 am]

BILLING CODE 4510-26-P